On July 28, 2014, the U.S. State Department released its annual report on religious freedom around the world.[1]
Secretary of State Kerry’s Comments
Announcing the release of the report, U.S. Secretary of State John Kerry said although the U.S. was “obviously far from perfect,” it was important for the U.S. to treasure freedom of religion as “a universal value. . . . The freedom to profess and practice one’s faith is the birthright of every human being . . . [and] are properly recognized under international law. The promotion of international religious freedom is a priority for President Obama and it is a priority for me as Secretary of State.” In short, “religious freedom remains an integral part of our global diplomatic engagement.”
Executive Summary of the Report
The world had the largest displacement of religious communities in recent memory. In almost every corner of the globe, millions of Christians, Muslims, Hindus, and others representing a range of faiths were forced from their homes on account of their religious beliefs. Out of fear or by force, entire neighborhoods are emptying of residents. Communities are disappearing from their traditional and historic homes and dispersing across the geographic map.” In conflict zones (Syria, Central African Republic and Burma), this mass displacement has become a pernicious norm.
All around the world, individuals were subjected to discrimination, violence and abuse, perpetrated and sanctioned violence for simply exercising their faith, identifying with a certain religion, or choosing not to believe in a higher deity at all. Countries where this was a significant problem were Pakistan, Egypt, Saudi Arabia, Iran, Bangladesh, Sri Lanka and Eritrea. Throughout Europe, the historical stain of anti-Semitism continued to be a fact of life.
Governments repressed religious freedom. Governments from all regions subjected members of religious groups to repressive policies, discriminatory laws, disenfranchisement, and discriminatory application of laws. These governmental actions not only infringed on freedom of religion themselves, but they also often created a permissive environment for broader human rights abuses. Restrictive policies included laws criminalizing religious activities and expression, prohibitions on conversion or proselytizing, blasphemy laws, and stringent registration requirements or discriminatory application of registration requirements for religious organizations. This was especially true in North Korea, Saudi Arabia, Iran, Sudan, China, Cuba, Tajikistan, Turkmenistan, Uzbekistan, Pakistan, Burma, Russia and Bahrain.
Governments engaged in discrimination, impunity and displacement of religious minorities. When governments choose not to combat discrimination on the basis of religion and intolerance, it breeds an environment in which intolerant and violent groups are emboldened, even to the point of physically attacking individuals on the basis of their religious beliefs. Governments in these countries failed to protect vulnerable communities and many religious minority communities were disproportionately affected, resulting in a large number of refugees and internally displaced persons. This was especially true in Syria, Sri Lanka, Egypt, Iraq, Bangladesh, Indonesia, India and Nigeria. Rising anti-Semitism and anti-Muslim sentiment in the following countries of Europe demonstrated that intolerance is not limited to countries in active conflict:Belgium, France, Germany, Hungary, Italy, Latvia, Sweden and United Kingdom.
Religious minority communities were disproportionately affected by violence, discrimination and harassment. In many regions of the world, religious intolerance was linked to civil and economic strife and resulted in mass migration of members of religious minority communities throughout the year. In some of these areas, the outward migration of certain communities has the potential to permanently change the demographics of entire regions.
“Countries of Particular Concern”
Pursuant to the International Religious Freedom Act of 1998, the Secretary of State designated the following countries as “Countries of Particular Concern” (CPC): Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, Turkmenistan, and Uzbekistan. Such countries “engage in or tolerate particularly severe violations of religious freedom” or “systematic, ongoing, and egregious violations of religious freedom, including torture, cruel, inhuman, or degrading treatment or punishment, prolonged detention without charges, abduction or clandestine detention of persons, or other flagrant denial of the right to life, liberty, or the security of persons based on religion.”
Turkmenistan, which is new to this State Department list, is the only one of eight countries recommended for such designation by the latest report from the U.S. Commission on International Religious Freedom. The others so recommended by the Commission are Egypt, Iraq, Nigeria, Pakistan, Syria, Tajikistan and Vietnam.
Ambassador-at-large for International Religious Freedom
Simultaneously with this report’s release, the Obama administration announced the nomination of Rabbi David Saperstein as the next ambassador-at-large for international religious freedom. Rabbi Saperstein, a reform rabbi and lawyer known for his work in Washington to advance religious freedom, would be the first non-Christian to lead the State Department’s Office of International Religious Freedom, if confirmed by the Senate.
The presidential and vice presidential candidates for the Republican Party in 1904 were President Theodore Roosevelt and Charles W. Fairbanks and for the Democratic Party, Alton B. Parker and Henry Davis.
Republican Party’s Nomination of Roosevelt (and Fairbanks)
At the Republicans’ June convention in Chicago, Roosevelt was unanimously nominated on the first ballot, and the leaders of the conservative wing of the Party selected Fairbanks, a conservative Senator from Indiana with close ties to the railroad industry, for the running mate. Roosevelt was not pleased with Fairbanks, but did not think it was worth fighting about.
Sagamore Hill
On July 27th, 54 solemn Republicans went to Roosevelt’s home, Sagamore Hill, in Oyster Bay, New York on the north shore of Long Island,[1] to enact their party’s “most hallowed ritual: a formal notification of nomination to its presidential candidate.” [2]
Roosevelt in a 12-minute speech that day accepted the nomination. He, of course, praised the Republican Party and slammed the Democrats. He had two comments regarding business issues. He stated, “In dealing with the great organizations known as trusts, we [need] . . . to point out that [the laws] . . . actually have been enforced, and that legislation has been enacted to increase the effectiveness of their enforcement.” Roosevelt added, “The problems with which we have to deal in our modern industrial and social life are manifold; but the spirit in which it is necessary to approach their solution is simply the spirit of honesty, of courage, and of common-sense.”
His more formal letter of acceptance of September 12th reiterated these points and praised the previously mentioned “successful suit against the Northern Securities Company merger,” the enforcement of “the anti-trust and interstate commerce laws, and the action of the last Congress in enlarging the scope of the interstate commerce law [in the Elkins Act], and in creating the Department of Commerce and Labor, with a Bureau of Corporations, [that] have for the first time opened a chance for the National Government to deal intelligently and adequately with the questions affecting society, whether for good or for evil, because of the accumulation of capital in great corporations.”
The Campaign
Roosevelt’s Secretary of State, John Hay, in a letter to American historian and author, Henry Adams, called this campaign “the most absurd political campaign of our time.” Roosevelt did not actively campaign. Instead he issued statements form his front porch at Sagamore Hill, and the Republican Party received large campaign contributions from wealthy capitalists, including J.P. Morgan, the financial leader of Wall Street and a director of the New York Central Railroad; Edward H. Harriman, the president of the Union Pacific Railroad and also a director of the New York Central; and Henry C. Frick, the steel baron.
Roosevelt’s campaign slogan “The Square Deal” reiterated his comment on the settlement of the 1902 coal miners’ strike. He promised to “see it that every man has a square deal, no less and no more.” This pledge summed up Roosevelt’s belief in balancing the interests of business, consumers, and labor. The Square Deal called for limiting the power of trusts (a person having control of a large corporation so that no others can succeed in the economy), promoting public health and safety, and improving working conditions.
The Election Results
The results of the November 8thelection were not close. Roosevelt and Fairbanks had 7,626,000 votes (56.4%); Parker and Davis, 5,084,000 (37.6%). The Electoral College margin for Roosevelt and Fairbanks was even wider: 336 (70.6%) vs. 140 (29.4%); the following map shows the geographical distribution of the electoral votes (Republican in red; Democrat in blue):
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[1]Sagamore Hill is now a National Historic Site, currently closed for renovation.
[2] Edmund Morris, Theodore Rex at 343-64 (Random House; New York, 2001).
As discussed in a prior post, a major issue for President Theodore Roosevelt in his first term was whether and how to enhance federal regulation of railroads and other companies engaged in interstate commerce.
Two accomplishments on that issue stand out: conducting a successful federal antitrust case against the Northern Securities Company, as covered in another earlier post, and pressing for the enactment of a new statute (the Elkins Act) to increase the power of the Interstate Commerce Commission (ICC) over railroad freight rates.
Now we examine the circumstances relating to the enactment of that statute.
Legal Background
In 1887 the Interstate Commerce Act was enacted in response to rising public concern over the growing power and wealth of corporations, particularly railroads. Railroads had become the principal form of transportation for both people and goods, and the prices they charged and the practices they adopted greatly influenced individuals and businesses. In some cases, the railroads were perceived to have abused their power as a result of too little competition. Railroads also had banded together to form pools and trusts that fixed rates at higher levels than they could otherwise command.
This statute created the Interstate Commerce Commission (ICC) and required that railroad rates be “reasonable and just,” but did not empower the ICC to fix specific rates. It also required that railroads publicize shipping rates and prohibited short-haul or long-haul fare discrimination, a form of price discrimination against smaller markets, particularly farmers.
By 1901, however, it was apparent that large shippers were able to obtain discounts or rebates and that the ICC was not effective, and the ICC had notified the administration about abuses within the railroad industry. In addition, a large segment of the population supported efforts to regulate the railroads because so many people and businesses were dependent on them.
Roosevelt vs. The Railroads
President Roosevelt then began advocating for new statutes to remedy these weaknesses:
State of the Union (Annual) Message (December 3, 1901). In his first Annual Message, Roosevelt recommended that the ICC’s 1887 statute be amended to ensure that railroad “rates should be just to, and open to, all shippers alike” and that the ICC had “a speedy, inexpensive, and effective remedy to that end.” Even though the “cardinal provisions of [the 1877 statute] were that railway rates should be just and reasonable and that all shippers, localities, and commodities should be accorded equal treatment,” there are allegations “that established rates are not maintained; that rebates and similar devices are habitually resorted to; that these preferences are usually in favor of the large shipper; that they drive out of business the smaller competitor; that while many rates are too low, many others are excessive; and that gross preferences are made, affecting both localities and commodities.” On the other hand, “the railways assert that the law by its very terms tends to produce many of these illegal practices by depriving carriers of [the] . . . right of concerted action which they claim is necessary to establish and maintain non-discriminating rates.”
Speech in Providence, Rhode Island (August 23, 1902). On August 23, 1902, before a crowd of over 20,000, Roosevelt in a speech said, “The great corporations . . . [or trusts] are the creatures of the State, and the State not only has the right to control them, but it is in duty bound to control them wherever need of such control is shown. . . . The immediate necessity in dealing with trusts is to place them under the real, not nominal, control of some sovereign to which, as its creatures, the trusts shall owe allegiance, and in whose courts the sovereign’s orders may be enforced. In my opinion, this sovereign must be the National Government.”
State of the Union (Annual) Message (December 2, 1902. In his second Annual Message to the Congress, Roosevelt said that “the experience of the past year has emphasized . . . the desirability of the steps” regarding regulation of [interstate] trusts that he discussed in his first state of the union message. In short, “Corporations, and especially combinations of corporations, should be managed under public regulation [by the federal government].”
In early 1903 the U.S. Department of Justice prepared a bill to remedy the perceived deficiencies in the ICC and submitted it to the Congress. By February of that year Senator Stephen B. Elkins, Republican of West Virginia and a member of the Senate Committee on Interstate Commerce, predicted that Congress would adopt a railroad anti-rebate bill that would satisfy the Administration as well as fair-minded railroad executives. Elkins and his wife, by the way, owned coal mines and a coal railroad, the latter of which in 1902 had been sold, and were friends of railroad interests.
That month (February 1903) what became known as the Elkins Act unanimously was passed by the Senate and approved by the House by a vote of 250 to 6. On February 19th Roosevelt signed the Elkins Act (An Act to further regulate commerce with foreign nations and among the States, 32 Stat. 847, ch. 708 (1903).) Although it was called the Elkins Act, it really was drafted by the President of the Pennsylvania Railroad, which resented being pressured by shippers to grant rebates. Other railroads supported the measure for the same reason with an estimated 10% of all railroad revenues being paid out in rebates.
The Elkins Act made it a misdemeanor for a railroad and its directors, officers and agents willfully to fail to file with the ICC and publish its freight rates or failure “strictly to observe” those rates. It also was a misdemeanor “to offer, grant, or give or to solicit, accept, or receive any rebate, concession, or discrimination” in such rates. All such misdemeanors were punishable by a fine between $1,000 and $20,000. The ICC alone was not empowered to make these determinations; instead the ICC had to petition a federal circuit court to do so and to enjoin any such violations.
Immediate Reaction to the Elkins Act
President Roosevelt in his Annual State of the Union Message on December 7, 1903, applauded the progress over the last year in the “exercise of supervision over the great [interstate] corporations and combinations of corporations.” This included congressional approval of the Elkins Act that has “secured equal treatment to all producers in the transportation of their goods, thus taking a long stride forward in making effective the work of the [ICC].”
The ICC itself in its Annual Report of December 15, 1903, emphasized that the Act was targeted “to prevent or more effectually reach those infractions of law, like the payment of rebates and kindred practices.” The Act also simplified the method of proving discrimination or rebates by making the violation the charging of a rate less than the published rate. In short, the Act is a “wise and salutary” statute correcting “serious defects in the original [Interstate Commerce Act of 1890] and greatly aided the attainment of some of [its] purposes.” However, the ICC noted that it had “no power to determine what rate is reasonable, and such orders as it can make [about rates] have no binding effect.”
Others criticized the Elkins Act’s failure to grant the ICC power to determine reasonable freight rates and the Act’s elimination of imprisonment for violations whereas the supporters of the measure thought that elimination would encourage firms to testify against each other and thereby encourage compliance with the law. Many merchants started agitating for new legislation granting the ICC power to suspend freight rates on complaint.
I have not found any commentary about the Elkins Act by W. C. Brown, my maternal great-great-uncle and then a Vice President of the New York Central Railway.
However, in an April 18, 1907, speech at the Buffalo, New York Chamber of Commerce, he said, “I am firmly and unalterably in favor of regulation of railroads by the Nation and States.”[2] This comment came after he had stated that “the railroads were being operated intelligently, skillfully, vigorously to the last limit of capacity. Yet almost any other business has offered higher and more certain returns than railroads, and it will be impossible for railroads to raise needed capital unless such investment will be reasonably attractive and secure resulting from assurance of reasonable cooperation and protection. This will be difficult in light of extreme hostility and indiscriminate agitation that has resulted in unjust and harmful legislation in many states.”
Brown returned to this theme in February 1908, when he said, “The principle of the control and regulation of railroads by the nation and the several States has been accepted in good faith by the railroads, and they have entered upon the task of adjusting their operations to the changed conditions resultant upon laws recently enacted.” His only caveat was railroads’ needing “a fair and impartial hearing and the . . . right to appeal to the courts to prevent injury or to secure redress of injustice.” [3]
In the New York Central’s annual report for 2009, Brown said, “Governmental regulation of railroads, within proper limitations, is of benefit to the public, to the railroads, and to those who hold their securities.” [4]
Therefore, it was not surprising for Brown to say in a September 26, 1910, letter to “My dear Col. Roosevelt,” after Roosevelt was out of office, “During your term as President, as you know, I steadfastly supported your ideas in regard to Corporations.”[5]
[1] This discussion is based upon the Elkins Act; Edmund Morris, Theodore Rex at 206, 429 (Random House; New York; 2001); Kolko, Railroads and Regulation, 1877-1916, at 90-92, 94-102 (Princeton Univ. Press; Princeton; 1965); ICC, Seventeenth Annual Report (Dec. 15, 1903); Theodore Roosevelt Center, The Elkins Act.
[2] William C. Brown, Remarks at Chamber of Commerce, Buffalo, New York, April 18, 1907.
[3]Praises Rebate Law, N. Y. Times (Feb. 2, 1908).
[4]Regulations Help Railroads Along, N. Y. Times (Mar. 13, 1910).
[5] This letter (Image (# 93-0659) was provided courtesy of the Library of Congress Prints and Photographs Divisions and Theodore Roosevelt Center at Dickinson State University, http://www.theodorerooseveltcenter.org.The letter’s salutation of “Col. Roosevelt” was a reference to his having served as a Colonel in the U.S. Army’s Rough Rider Regiment in the Spanish-American War, where he was hailed as a hero for leading a charge up San Juan and Kettle Hills in Cuba, and to Roosevelt’s preference to be called “Colonel” by those close to him. Why did he prefer to be called “Colonel” instead of “Mr. President”? I suspect it was his desire to emphasize his personal physical bravery in armed combat.
As mentioned in an earlier post, one of President Theodore Roosevelt’s major efforts to enhance federal regulation of railroads in his first term was his Administration’s commencement of an antitrust lawsuit under the Sherman Act against the Northern Securities Company, which combined the stocks of two competing railroads from the Great Lakes and the Mississippi River to Puget Sound on the Pacific Coast.
These two roads were the Great Northern Railway running from St. Paul, Minnesota to Seattle, Washington while the Northern Pacific Railway ran from St. Paul (and separately from Ashland, Wisconsin and Duluth, Minnesota) to Seattle and Tacoma, Washington and Portland, Oregon. In addition, the two of them jointly owned the Chicago, Burlington & Quincy Railroad, which connected St. Paul with Chicago. [1]
Great Northern RailwayNorthern Pacific Railway
The Legal Background
The late 19th century was an era of “trusts” and of “combinations” of businesses and of capital organized and directed to control of the market by suppression of competition in the marketing of goods and services, the monopolistic tendency of which had become a matter of public concern.
To meet this problem, the U.S. in 1890 enacted “An act to protect trade and commerce against unlawful restraints and monopolies,” 26 Stat. 209, ch. 647 (1890). The statute is commonly referred to as the Sherman Act in recognition of its principal author or sponsor, Senator John Sherman, Republican of Ohio. The statute provided, in part, as follows:
“Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states . . . is hereby declared to be illegal. Every person who shall make any such contract, or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor . . . .” (Section 1)
“Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several states . . . shall be deemed guilty of a misdemeanor . . . . ” (Section 2)
The prescribed penalty for such misdemeanors was a fine up to $5,000 or imprisonment not exceeding one year or both. In addition, the circuit courts (n/k/a district courts) were “invested with jurisdiction to prevent and restrain violations” of the statute (Section 4), and persons injured in their business or property by any violations could sue the perpetrators for treble damages and attorneys’ fees (Section 7).
The goal of the Sherman Act was to prevent restraints of free competition in business and commercial transactions that tended to restrict production, raise prices, or otherwise control the market to the detriment of purchasers or consumers of goods and services.
The Formation of Northern Securities
On November 13, 1901 (only two months after Roosevelt became President), J. P. Morgan, who controlled 21 railroads, including the Northern Pacific, and James J. Hill of the Great Northern [2] announced the formation of the Northern Securities Company to be a holding company for the common stock of the two competing railroads, This new combination was the second largest company in the world with annual revenues of $100 million and covering commerce from Chicago to Seattle and extending to China over Mr. Hill’s shipping lines.
A New York newspaper saw the new company as another step toward universal monopoly.
The Commencement of the Lawsuit
On February 19, 1902 (only three months after the formation of the Northern Securities Company), the Roosevelt Administration announced plans to commence the antitrust case alleging that the formation and operation of Northern Securities constituted a restraint of interstate commerce in violation of the Sherman Antitrust Act. In addition to the two railroads, the U.S. planned to sue James J. Hill of the Great Northern and seven directors of the Northern Pacific, including J. P. Morgan and George F. Baker. [3]
James J. HillJ. P. MorganGeorge F. Baker
The U.S. stock market immediately registered significant declines with similar reactions in London, Paris and Berlin markets. In response, J. P. Morgan starting buying stocks in great quantities and helped to stop a panic.
The next evening Morgan and 12 other wealthy men met with Roosevelt at the White House without discussing the lawsuit, i.e., the elephant in the room. The next morning, however, the subject was broached when Morgan returned alone to the White House for a meeting with Roosevelt and the Attorney General, Philander Chase Knox. Morgan asked why the Government had not just called and asked him to correct any irregularities with the charter of Northern Securities, but Knox merely said the Government wanted to stop the company, not to fix it up. Afterwards Roosevelt said, “Mr. Morgan could not help regarding me as a big rival operator who either intended to ruin all his interests or could be induced to come to an agreement to ruin none.”
Theodore RooseveltPhilander Chase Knox
The Case in the Circuit Court
The bill in equity (or “complaint” in today’s terminology) thereafter was filed with the U.S. Circuit Court for the District of Minnesota.[4] The complaint charged that the Northern Securities was an illegal “combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states” (Sherman Act § 1).
The next April 9th (1903), the Circuit Court’s four Circuit Judges unanimously upheld the validity of the Government’s complaint (United States v. Northern Securities Co., 120 Fed. 721 (Cir. Ct., Dist. Minn. 1903)) . The court in an opinion by Judge Thayer first entered the following findings of fact as established by the pleadings and evidence:
The Great Northern and Northern Pacific owned railroad lines from Minnesota to Puget Sound that are parallel and competing lines.
These two railroads in 1901 jointly acquired 98% of the capital stock of the Chicago, Burlington & Quincy Railway.
Thereafter in 1901 James J. Hill, J. P. Morgan and six other men, all of whom were defendants in the case and collectively had practical control of the two principal railroads, arranged to place a large majority of the stock of the two railroads in a holding company, Northern Securities, and that was done.
As a result, the control of these two railroads was put into a single person and thereby “destroyed every motive for competition” between them.
Those “who conceived and executed this plan . . . intended . . . to accomplish these objects.”
The court then concluded that the Congress “deliberately employed words of such general import [in section 1 of the Sherman Act] as, in its opinion, would comprehend every scheme that might be devised to accomplish that end.” In addition, the U.S. Supreme Court had held that the Act “applies to interstate carriers of freight and passengers . . .; that [the Act does] not mean in unreasonable or partial restraint of trade or commerce, but any direct restraint thereof; that an agreement between competing railroads . . . [to fix their rates is] a contract in direct restraint of commerce . . .; and [that the Act is constitutional].”
Therefore, the court entered a decree that the defendants had violated section 1 of The Sherman Act and that Northern Securities was enjoined from acquiring additional stock of the two railroads, from voting its holdings of those shares and from exercising or attempting to exercise any control or direction over the two railroads. Northern Securities, however, was permitted to rescind its acquisitions of the stock of the two railroads.
The Case in the Supreme Court
The case then went directly to the U.S. Supreme Court, [4] which on December 14, 1903, heard arguments. Attorney General Knox appeared for the Government and made what many thought was a brilliant argument without any questions from the Justices.
In March 1904, the U.S. Supreme Court, 5 to 4, affirmed the Eighth Circuit and ordered the company dismantled. (Northern Securities Co. v. United States, 193 U.S. 197 (1904).) The Court’s plurality opinion by Mr. Justice John Marshall Harlan and supported by only three of the other Justices concluded that “the evidence . . . shows a violation of the . . . [Sherman Act, which] declares illegal every combination or conspiracy in restraint of commerce among the several states . . . and forbids attempts to monopolize such commerce or any part of it.”
In so concluding, the Harlan opinion emphasized that the Court’s prior decisions had established that “every contract, combination, or conspiracy in whatever form, of whatever nature, and whoever may be parties to it, [that] directly or necessarily operates in restraint of [interstate] . . . commerce” is illegal. Those prior decisions, said the Harlan opinion, also determined that the statute is not limited to unreasonable restraints of trade; that railroads operating in interstate trade are covered by the statute; and that every contract, combination or conspiracy that would extinguish such competition is illegal. (Emphasis added.)
Mr. Justice David Josiah Brewer concurred in the judgment affirming the lower court’s conclusion of antitrust violations, but disagreed with the rationale of the Harlan opinion because of fear that it “might tend to unsettle legitimate business enterprises, stifle or retard wholesome business activities, encourage improper disregard of reasonable contracts, and invite unnecessary litigation.” Instead, said Justice Brewer, the statute only covered “contracts which were in direct restraint of trade, unreasonable, and against public policy.” (Emphasis added.)
A dissenting opinion was filed by Mr. Justice Edward Douglas White and joined by Chief Justice Melville Fuller and Justices Rufus Wheeler Peckham and Oliver Wendell Holmes. This opinion concluded that the constitutional power of the federal government over interstate commerce did not extend to cover Northern Securities Company’s acquisition of the common stock of the two railroads.
Holmes also filed a separate dissenting opinion that was joined by the other three dissenters. Holmes asserted that the antitrust statute only outlawed combinations in restraint of trade, not of competition and that he saw no evidence of an attempt to monopolize some portion of U.S. trade or commerce. He also expressed relief that “only a minority of my brethren [the four Justices who subscribed to the opinion of Mr. Justice Harlan] adopt an interpretation of the [statute] . . . which . . . would make eternal the bellum omnium contra omnes [the war of all against all], and disintegrate society so far as it could into individual atoms . . . . [Such an interpretation] would be an attempt to reorganize society . . . . I believe Congress was not entrusted by the Constitution with the power to make . . . [such a law], and I am deeply persuaded that it has not tried.”
The high court’s action was a major victory for the administration and put the business community on notice that although this was a Republican administration, it would not give business free rein to operate without regard for the public welfare.
W. C. Brown’s Reaction to the Supreme Court’s Decision
W. C. Brown
Soon thereafter (May 24, 1904), W.C. Brown, my maternal great-great-uncle, in a speech to the Illinois Manufacturers Association that was covered by the New York Times commented on the Supreme Court’s decision. He said, “Propositions looking to the betterment of [railroad] service, having no other object, and impossible of any other result, have been misunderstood and have been fought inch by inch with a perseverance and zeal worthy a better cause.” As a result, Brown continued, it was “not impossible that the language of the majority of the Supreme Court [in the Northern Securities case] may . . . seem to reflect the clamor of the public, rather than the calm, judicial review of a great question.” [5]
Brown added that by “amendment or by judicial interpretation the question of reasonable restraint of commerce, as against any restraint whatever, must become part of the Sherman . . . [Act], and must be considered in its enforcement, or obstacles to commercial and industrial progress are likely to be interposed the gravity of which no one can foresee.” (Emphasis added.)
This commentary was preceded by Brown’s proclaiming that “[e]xcept for the birth of Christ, no event has meant so much to humanity as the U.S. Declaration of Independence;” that the recent U.S. war with Spain was “as holy, as high and unselfish in purpose as ever inspired a people;” and that the U.S. had the “satisfaction of having borne its share of the burden of carrying Christianity, civilization and education to those who sit in the darkness of ignorance and superstition.”
Brown also issued a stern warning that apparently emerged from his growing up in thinly populated Iowa and Illinois and that ignored his presumably elegant life in New York City (and earlier in Chicago). Brown said, “The most serious menace that clouds our national horizon today, ominous now and increasing in size and anger and portent, is the rapid growth of our cities . . . . No man can regard the growth of the great centers of population, with their sinister, dangerous, preponderantly influence in the politics of the State and Nation, without alarm.” He added, “The remedy for this evil and the safety of the Nation was building up, encouraging, and increasing our agricultural population.”
It should also be noted that at the time of this speech, Brown was a Vice President of the New York Central Railway, two of whose directors were defendants in the case: J. P. Morgan, a principal architect and beneficiary of the formation of the Northern Securities Company, and George F. Baker.
Subsequent Supreme Court’s Interpretations of the Sherman Act
Seven years later, in 1911, the approach to interpreting the Sherman act advocated by Justice Brewer and W. C. Brown was in fact adopted by the U.S. Supreme Court. In Standard Oil Co. v. United States, 221 U.S. 1 (1911), the Court, 8 to 1, stated that only combinations and contracts unreasonably restraining interstate or foreign commerce were illegal under the Sherman Act. Justice John Marshall Harlan, the lone dissenter in this case and the author of the Court’s opinion in Northern Securities, said the Rule of Reason was a departure from previous Sherman Act case law, which purportedly had interpreted the language of the Sherman Act to hold that all contracts restraining trade were prohibited, regardless of whether the restraint actually produced ill effects.
Thereafter the Court unanimously reaffirmed the Rule of Reason in two cases: United States v. American Tobacco Co., 221 U.S. 106 (1911) (section 2 of the Sherman Act did not ban the mere possession of a monopoly but only the unreasonable acquisition and/or maintenance of monopoly); Chicago Board of Trade v. United States, 246 U.S. 231 (1918) (agreement between rivals limiting rivalry on price after an exchange was closed was reasonable and thus legal).
Subsequent Supreme Court cases established the concept of per se violations of Section 1 of the Sherman Act. These are “agreements, conspiracies or trusts in restraint of trade” that have been found to have a “pernicious effect on competition” or “lack any redeeming virtue” and include competitors’ agreements to fix their prices or divide markets between them and concerted refusals to deal.
For other alleged violations of section 1 of the Sherman Act, the courts engage in a “rule of reason” analysis to evaluate the intent and purpose of the conduct, the facts peculiar to the business and industry, the history of the conduct and its effect on competition. If the result of this judicial analysis is the conduct unreasonably restrains trade, it is a violation of section 1.
[1] This post is based upon Edmund Morris, Theodore Rex at 59-65, 87-95, 219, 304-05, 313-16 (Random House; New York; 2001); MIller Center, Theodore Roosevelt: Domestic Affairs; and the other sources cited below.
[2] The James J. Hill House is a St. Paul mansion now open to the public and operated by the Minnesota Historical Society.
[4] As of 1903 nine U.S. circuit courts had jurisdiction over trials of all civil suits initiated by the U. S. Government in different parts of the country, and the circuit court that covered the State of Minnesota (the Eighth Circuit) had four Circuit Judges (Henry C. Caldwell, Walter H. Sanborn, Amos M. Thayer and Willis Van Devanter). As of January 1, 1912, these courts were abolished, and the previously established U. S. district courts assumed jurisdiction over all civil and criminal cases in the federal courts.
[5] W.C. Brown, Address before the Meeting of the Illinois Manufacturers Association, Chicago, Illinois (May 23, 1904); Supreme Court Influenced, N.Y. Times (May 24, 1904).
As previously noted, Theodore Roosevelt and William Carlos Brown (my maternal great-great-uncle) were together on one of Roosevelt’s campaign journeys in the election of 1900. Thereafter during Roosevelt’s first (09/14/1901—03/04/1905) and second (03/04/1905—03/04/1909) presidential terms, these two men also had periodic contacts on railroad issues while Brown was Vice President and Senior Vice President of the New York Central Railroad, one of the most important railroads in the country (02/01/1902 —01/31/1909).
During those eight years, railroads were the first major U.S. industry and made possible the growth of other major industries, including coal, steel, flour milling and commercial farming. They also established major cities like Chicago and with telegraphy transformed communications. (Albro Martin, Railroads Triumphant:The Growth, Rejection and Rebirth of a Vital American Force (1992).)
The importance of the railroads to the U.S. economy affected everyone and prompted much popular dissatisfaction with perceived abuses by the railroads. Roosevelt entered this social and political milieu with a belief that the government should use its resources to help achieve economic and social justice.
He acted on this belief in the fall of 1902 when a miners’ strike threatened a coal shortage in the upcoming winter. Roosevelt called both the mine owners and the labor representatives together at the White House. When management refused to negotiate, Roosevelt told them if the two sides did not talk, he would use troops to seize the mines and run them as a federal operation. Faced with this threat, the owners and labor unions agreed to submit their dispute to a commission and abide by its recommendations. The resulting settlement, Roosevelt said, was a “square deal” or one fair to both sides, and this label soon became synonymous with Roosevelt’s overall domestic program.
As part of this “Square Deal” program or approach Roosevelt advocated increased federal government regulation of corporations acting in interstate commerce, especially the railroads, in both of his presidential terms.
There were two principal developments on this issue in Roosevelt’s first term. The first was his Administration’s commencement in 1902 of an antitrust lawsuit against the Northern Securities Company, which combined the stocks of two competing railroads from the Great Lakes and the Mississippi River to Puget Sound on the Pacific Coast. The second was the Administration’s pressing the Congress in 1903 to enact the Elkins Act to enhance the powers of the Interstate Commerce Commission over railroad freight rates.
These developments will be discussed in subsequent posts while others will investigate this subject during Roosevelt’s second term as President.
As reported in a prior post, on December 4, 2012, the U.S. Senate voted 61 to 38 to give its Advice and Consent to U.S. ratification of the United Nations Convention on the Rights of Persons with Disabilities. This, however, fell six votes short of the two-thirds vote required by Article II, § 2(2) of the U.S. Constitution. This failure happened even though the treaty essentially adopted the terms of the Americans with Disabilities Act and was supported by all 51 Democratic, 2 Independent and 8 Republican Senators.
The 38 “No” votes were all cast by Republican Senators despite the support of the treaty by Robert Dole, the former Republican Majority and Minority Leader of the Senate and the Party’s presidential candidate in 1996, who was on the Senate floor in his wheelchair to garner support for the treaty.
Cruz
We now learn that on that day (December 4, 2012), Ted Cruz, in the month before he became the new U.S. Senator from Texas, attended a Senate Republican caucus meeting and spoke against the treaty as an infringement of U.S. sovereignty and urged the Republican Senators to vote against the treaty. After the lunch, according to Democratic Senator Dick Durbin, the Republican Senators emerged “scared as hell.” For Republican Senator John McCain, “It was the most embarrassing day in my time in the Senate, to force Bob Dole to watch that.” All of this is in an article (The Absolutist) by Jeffrey Toobin in the June 30, 2014, issue of the New Yorker.
As mentioned in a prior post about the recent U.S. Department of State’s Trafficking in Persons Annual Report 2014, the Department gave Cuba the worst ranking (Tier 3). This post examines that assessment (Report at 148-50).
Positive Aspects of Cuban Record on Trafficking
Even though the Report reached an overall negative evaluation of Cuba’s record on this subject, a close examination of the Report uncovers many positive comments about that record.
First, the Report admits that on July 20, 2013, Cuba acceded to the 2000 UN TIP Protocol, a key multilateral treaty on the subject.[1]
The Report conceded that Cuba prohibits some forms of human trafficking through the following laws: Article 299.1 (pederasty with violence); Article 300.1 (lascivious abuse); Article 302 (procuring and trafficking in persons); Article 303 (sexual assault); Article 310.1 (corruption of minors for sexual purposes); Article 312.1 (corruption of minors for begging); and Article 316.1 (sale and trafficking of a child under 16).
The Report also acknowledges that other parts of the Cuban penal code cover sex trafficking, but then engages in a microscopic criticism of that code because it supposedly does not meet what the U.S. regards as the ideal set of such laws.[2]
Moreover, the Report states that the Cuban government has advised the U.S. that Cuba “intends to amend its criminal code to ensure that it is in conformity with the requirements of the 2000 UN TIP Protocol.” This will be a part of the process “of generally revising its criminal code.” Presumably those forthcoming amendments should satisfy at least some, if not all, of the detailed U.S. criticisms.
The Report says, “For the first time, [in October 2013] the [Cuban] government presented official data on investigations and prosecutions of sex trafficking offenses and convictions of sex trafficking offenders. In 2012, the year covered by . . .[that] official Cuban report, the government reported 10 prosecutions and corresponding convictions of sex traffickers. At least six of the convictions involved nine child sex trafficking victims within Cuba, including the facilitation of child sex tourism in Cuba. The average sentence was nine years’ imprisonment. The government reported that a government employee (a teacher) was investigated, prosecuted, and convicted of a sex trafficking offense. There were no reported forced labor prosecutions or convictions.”
“Victims under 18,” says the U.S. Report, “were clearly identified by the Cuban government in 2012 as trafficking victims, and the perpetrators of these crimes were punished more severely in some cases when the victim was younger than 16.”
The Report continues, Cuban “child protection specialists reportedly provided training to police academy students. Students at the Ministry of Interior academy and police who were assigned to tourist centers reportedly received specific anti-trafficking training. The government reported that employees of the Ministries of Tourism and Education received training to spot indicators of trafficking, particularly among children engaged in commercial sex. The government demonstrated its willingness to cooperate with other governments on investigations of possible traffickers.”
Another concession in the Report was its acknowledging that “the Federation of Cuban Women, a government entity that also receives funding from international organizations, operates 173 Guidance Centers for Women and Families nationwide and reported that these centers provided assistance to 2,480 women and families harmed by violence, including victims of trafficking. These centers assisted the women from their initial contact with law enforcement through prosecution of the offenders. Social workers at the Guidance Centers provided services for victims of trafficking and other crimes such as psychological treatment, health care, skills training, and assistance in finding employment. The four adult trafficking victims identified by the Cuban government reportedly received services at these Guidance Centers.”
Cuban “authorities reported that the Ministry of Education identified other sex trafficking cases while addressing school truancy incidents.”
“The [Cuban] government made efforts to protect victims during the reporting period. Authorities reported that they identified nine child sex trafficking victims and four adult sex trafficking victims linked to the 2012 convictions; authorities reported no identified labor trafficking victims or male victims. Though the government had systems in place to identify and assist a broader group of vulnerable women and children, including trafficking victims, the government did not share any documentation of trafficking-specific procedures to guide officials in proactively identifying trafficking victims among vulnerable groups and referring them to available services.”
“The [Cuban] police encouraged child trafficking victims under the age of 17 to assist in prosecutions of traffickers by operating three facilities where law enforcement and social workers worked together to support the collection of testimony and the treatment of sexually and physically abused children. These victim-centered facilities gathered children’s testimony though psychologist- led videotaped interviewing, usually removing the need for children to appear in court. In addition to collecting testimony, government social workers developed a specific plan for the provision of follow-on services. The facilities assisted the nine identified child trafficking victims and reportedly referred them to longer term psychological care, shelter, and other services as needed.”
“The [Cuban] government asserted that none of the identified victims were [sic] punished, and authorities reported having policies that ensured identified victims were not punished for crimes committed as a direct result of being subjected to human trafficking. There were no reports of foreign trafficking victims in Cuba.”
The Cuban government also “launched a media campaign to educate the Cuban public about trafficking and publicized its anti- trafficking services.” More specifically, according to the U.S. Report, Cuban “state media produced newspaper articles and television and radio programs to raise public awareness about trafficking. Senior public officials, including the Minister of Justice, publicly raised the problem of trafficking. The government maintained an Office of Security and Protection within the Ministry of Tourism charged with monitoring Cuba’s image as a tourism destination and combating sex tourism.”
Negative Aspects of Cuba’s Record
According to the Report, “Cuba is a source country for adults and children subjected to sex trafficking . . . . Child prostitution and child sex tourism occur within Cuba. Cuban authorities report that young people from ages 13 to 20 are most vulnerable to human trafficking in Cuba. Cuban citizens have been subjected to forced prostitution outside of Cuba.”
In addition, the Report addresses the issue of whether or not Cuba engages in forced labor, and an objective reading of that portion of the Report leads to the conclusion that there is no proof of such a practice. The Report asserts that “Cuba is a source country for adults and children subjected to . . . possibly forced labor.” There have been “allegations of coerced labor with Cuban government work missions abroad; the Cuban government denies these allegations. Some Cubans participating in the work missions have stated that the postings are voluntary, and positions are well paid compared to jobs within Cuba. Others have claimed that Cuban authorities have coerced them, including by withholding their passports and restricting their movement. Some medical professionals participating in the missions have been able to take advantage of U.S. visas or immigration benefits, applying for those benefits and arriving in the United States in possession of their passports—an indication that at least some medical professionals retain possession of their passports. Reports of coercion by Cuban authorities in this program do not appear to reflect a uniform government policy of coercion; however, information is lacking. The government arranges for high school students in rural areas to harvest crops, but claims that this work is not coerced.” (Emphases added.)
The scope of trafficking involving Cuban citizens is difficult to verify because of sparse independent reporting . . . .”
As previously mentioned, the Report criticizes Cuba for not having a comprehensive set of laws on the subject. The Report says that although the “Government of Cuba prosecuted and convicted sex trafficking cases, . . . its overall effort was hampered by the absence of a comprehensive legal framework that criminalizes all forms of human trafficking.” The same point was put this way: the “government has yet to establish a legal and policy framework prohibiting all forms of human trafficking and providing explicit victim protections.”
“The government did not operate any shelters or services specifically for adult trafficking victims.”
“The government did not report the existence of an established anti-trafficking task force or structured monitoring mechanism.”
The Report concludes that the “Government of Cuba does not fully comply with the minimum standards for the elimination of trafficking 3] and is not making significant efforts [4] to do so.” The italicized phrases have complex statutory definitions, but the U.S. Report did not say what specific elements of these definitions allegedly were not satisfied, and I will not attempt to identify those elements based upon the rest of the Report.
U.S. Recommendations for Cuba
The U.S. Report made the following recommendations for Cuba:
“Revise existing anti-trafficking laws to incorporate a definition of trafficking that is consistent with the 2000 UN TIP Protocol; adopt a definition of a minor for the purposes of human trafficking consistent with the Protocol (under 18 years),” but Cuba, as previously noted, already has said it would be doing so this year.
“[C]ontinue and strengthen efforts, in partnership with international organizations, to provide specialized training for police, labor inspectors, social workers, and child protection specialists in identifying and protecting victims of sex trafficking and forced labor, including by having in place clear written policies and procedures to guide officials in the identification of trafficking victims, regardless of age or gender, and their referral to appropriate services;” but as the first word of this recommendation admits, Cuba already is doing most, if not all, of these activities according to the U.S. Report.
“[A]dopt policies that provide trafficking-specific, specialized assistance for male and female trafficking victims, including measures to ensure identified sex and labor trafficking victims are not punished for unlawful acts committed as a direct result of being subjected to sex trafficking or forced labor;”
“[E]nact and implement policies to ensure no use of coercion in Cuban work-abroad missions,” but the Report had admitted that Cuba denies that it uses coercion;
“[P]rovide specialized training for managers of work-abroad missions in identifying and protecting victims of forced labor;”
“[C]riminally prosecute both sex trafficking and forced labor; and
“C]ontinue funding and expand the victim-centered practices of three government facilities for collection of testimony of young children.
Cuba’s Reaction
On June 20th the Cuban Ministry of Foreign Affairs responded to the above U.S. assessment. It said the U.S. ignored “the recognition and prestige of our country for their outstanding role in child protection performance, youth and women.”
The Cuban statement noted that Cuba had not requested the U.S. assessment or needed recommendations from the U.S., which was “one of the countries with the greatest problems of trafficking of children and women in the world.” The U.S. “has no moral [right] to rate Cuba, nor to suggest [a] plan of any kind, when it is estimated that the number of U.S. citizens who are trafficked within the country is close to 200,000, where labor exploitation is . . . widespread . . ., where 85% of the [U.S.} legal process . . . [on] this topic are cases of sexual exploitation, and where more than 300 thousand children, [plus] the million who leave their homes, are subject to any form of exploitation.”
“The Government of Cuba categorically rejects as unfounded the [U.S.] unilateral exercise that offends our people. Inclusion [of Cuba] on this list [is] totally politically motivated, as is the designation of Cuba as a state sponsor of international terrorism.” The U.S. Tier 3 designation of Cuba “is aimed to justify the policy of blockade” and “financial sanctions, [which] the Government of the United States increasingly intensifies, causing severe damages to our children, youth, women and all our people.”
Conclusion
Cuba’s statement correctly and legitimately points out that it had never requested the U.S. to assess Cuba’s record on this subject or to make recommendations to Cuba.
Instead, Cuba as a member of the U.N. and its Human Rights Council and as a party to the 2000 UN TIP Protocol implicitly, if not explicitly, has consented to such assessments and recommendations from the Council’s Special Rapporteur on trafficking in persons, especially in women and children, whose mandate includes promoting “the prevention of trafficking in persons in all its forms and the adoption of measures to uphold and protect the human rights of victims; . . . [and making] recommendations on practical solutions with regard to the implementation of the rights relevant to the mandate, including by the identification of concrete areas and means for international cooperation to tackle the issue of trafficking in persons. . . .”
One of the methods for implementation this mandate is for the Special Rapporteur to undertake “country visits in order to study the situation in situ and formulate recommendations to prevent and or combat trafficking and protect the human rights of its victims in specific countries.” Such a visit to Cuba has not yet happened, but it could be done and provide the evaluator with actual experience on the island with the cooperation of the Cuban government, which the U.S. Department of State, of course, did not have.
In any event, I do not have information sufficient to confirm or deny the U.S. assessment of Cuba on human trafficking or Cuba’s rejection of same, but the previously mentioned “unpacking” of the U.S. Report itself leads this reader to conclude that the overall worst rating for Cuba is not justified. Perhaps the U.S. authorizing statute for this report and Cuba’s not yet having amended its criminal code to comply with the UN TIP Protocol meant the State Department was legally unable to give Cuba a different ranking.
Accepting everything said about Cuba in the Report and assuming the State Department legally was unable to give Cuba a higher ranking, it would have been much more productive, in my opinion, for the Report to have said something like the following:
The U.S. applauds Cuba for making significant progress on combatting human traffic in 2013. It acceded to the UN TIP Protocol and is in the process of determining how to revise its criminal code to comply with that Protocol. It has prosecuted individuals for violations of its existing laws and has established centers to care for victims of trafficking. It has issued a public report about these prosecutions, has aided and protected victims of these crimes, provided appropriate training to various Cubans to help them identify such situations and conducted media campaigns to educate the public about these matters.
The U.S. regrets that U.S. laws governing this Report require this year’s Tier 3 ranking for Cuba, but we anticipate and hope that this will be the last such ranking for the proud Cuban government and people.
Because Cuba already is well on the way to improving its laws and practices regarding human trafficking, there is no need for the U.S. to be making recommendations on this subject to Cuba. If, however, Cuba would like any U.S. assistance on this important subject, the U.S. would be glad to respond.
Yes, State Department, such a statement would have been more diplomatic too.
[1]UN TIP Protocol or PROTOCOL TO PREVENT, SUPPRESS AND PUNISH TRAFFICKING IN PERSONS, ESPECIALLY WOMEN AND CHILDREN, SUPPLEMENTING THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME. This Protocol was adopted because of the conviction that “supplementing the United Nations Convention against Transnational Organized Crime with an international instrument for the prevention, suppression and punishment of trafficking in persons, especially women and children, will be useful in preventing and combating that crime.” There are now 159 states parties, including the U.S. and Cuba, the latter of which acceded with a declaration that, “in accordance with the provisions of Article 15, paragraph 3 of the Protocol, it does not consider itself bound by the provisions of paragraph 2 of that Article” that requires that “[a]ny dispute between two or more States Parties concerning the interpretation or application of this Protocol that cannot be settled through negotiation within a reasonable time shall . . . [under certain conditions] be submitted to arbitration [or] the International Court of Justice.”
[2] The Report says the Cuban “definition of sex trafficking appears to conflate sex trafficking with prostitution and pimping. The law criminalizes adult sex trafficking achieved through force, coercion, or abuse of power or a position of vulnerability, although the use of such means is considered an aggravating factor (to a crime of inducing or benefitting from prostitution), not an integral part of the crime. It does not explicitly include the use of fraud and physical force within the list of aggravating factors that make coercion of prostitution a crime. The provision addressing corruption of minors encompasses many of the forms of child sex trafficking, but its definition of a minor as a child under 16 years old is inconsistent with the definition under the 2000 UN TIP Protocol, which defines a child as any person under the age of 18; this means 16- and 17-year-olds engaged in prostitution for the benefit of a third party would not necessarily be identified as trafficking victims. Although anyone inducing children between the ages of 16 and 18 to engage in prostitution would not be identified as traffickers under Cuban law, forced prostitution is illegal irrespective of age of the victim, and the government has prosecuted individuals benefitting from the prostitution of children.” In addition, the U.S. says,” Both adult and child sex trafficking provisions fail explicitly to criminalize recruitment, transport, and receipt of persons for these purposes.”
[3] The above statutory phrase means: (1)“The government of the country should prohibit severe forms of trafficking in persons and punish acts of such trafficking.” (2)“For the knowing commission of any act of sex trafficking involving force, fraud, coercion, or in which the victim of sex trafficking is a child incapable of giving meaningful consent, or of trafficking which includes rape or kidnapping or which causes a death, the government of the country should prescribe punishment commensurate with that for grave crimes, such as forcible sexual assault.” (3) “For the knowing commission of any act of a severe form of trafficking in persons, the government of the country should prescribe punishment that is sufficiently stringent to deter and that adequately reflects the heinous nature of the offense.” (4) “The government of the country should make serious and sustained efforts to eliminate severe forms of trafficking in persons.”
[4] The above phrase apparently is a short-hand reference to the statutory phrase–“serious and sustained efforts to eliminate severe forms of trafficking in persons”—which has its own statutory definition.
“The Lord’s Prayer is something we repeat in all our worship, but when we pray, we repeat the words, but we don’t think about them. It is one of the most challenging things Jesus taught us. It is not a simple prayer. It is a commitment. It is a confession. It is a challenge for all of us and for His disciples at that moment.”
“’Our Father in heaven.’ We use a plural. It is not ‘my’ Father; it is ‘our Father.’ That means we have brothers and sisters. We are acknowledging that the people beside us here in the church are our brothers and sisters. Not only that, all persons in the world are our brothers and sisters. We all are His children. We have to think about and care about all of our brothers and sisters, like the big family of God. It is a commitment to think about, to care for, to be worried about all of our brothers and sisters. This is the first big challenge of this prayer.”
“’Hallowed be your name’ means God is holy for us, is very special for us and has a very important place in our life. We are confessing to God that He is very special for us and has a very important place in our life all the time. Too often we treat God as special only on Christmas and Easter. Do we really practice that? Do we just remember Him only when we have problems? This is very challenging.”
“’Your Kingdom come.’ The prayer goes deeper.We don’t go to the Kingdom. The Kingdom comes to us. It is also a commitment. As Paul says, we have to be collaborators or co-workers with God to make this world what He wants for us. We are committing to help Him, to be His hands and voice to help build this world. We are willing to take all the challenges in life to help Him, to sacrifice for Him.”
“’Your will be done.’ That is difficult. We often ask for what we want, not what God wants. When God does not do what we want, we often say God does not answer our prayer. Maybe His silence is His response to our prayer. We have to be open to the will of God. When you are planning your life for your future, God is laughing at you. He is the one who has the plans for our lives. We have to be willing to accept His plans for us.”
“’Give us this day, our daily bread.’ Again, the plural: ‘our’ daily bread. It does not say give me my daily bread. This means we have to be concerned about bread for all of our brothers and sisters here in Minneapolis and in my country and all over the world. Too many people die of hunger. Many people are needed to work for His kingdom. We need to be concerned about bread for all. We are committing ourselves to work not only for our personal bread, but for bread for all our brothers and sisters.”
“’Forgive us as we forgive others.’ This is also a very difficult challenge. We like to be forgiven, but we do not like to forgive. We thank God for his grace. But Jesus is teaching us to forgive, to understand why our brothers and sisters hurt us. We have to be willing to learn, to be open in love.”
“’Do not lead us into temptation, but deliver us from evil.’ Or ‘Do not bring us to the time of trial, but rescue us from the evil one.’ What are the temptations? What are the times of trial? They are in this prayer. We are asking God to liberate us from the temptation of not recognizing our brothers and sisters, of not recognizing that we are all members of the family of God. We are asking God to liberate us from the temptation of forgetting God, of not having God in the first place in our lives. We are asking God to help us from wanting to have our will be first, to help us forgive others. We are praying to God to liberate us from the temptation of indulging our own accumulation and not helping our brothers and sisters.”
“For all of us, when we pray the Lord’s Prayer, let us remember we are committing ourselves in a very strong way to be His disciples.”
The Department asserts that along with the other annual reports, this TIP is “the world’s most comprehensive resource of governmental anti-human trafficking efforts and reflects the U.S. Government’s commitment to global leadership on this key human rights and law enforcement issue. It represents an updated, global look at the nature and scope of trafficking in persons and the broad range of government actions to confront and eliminate it. . . . The U.S. . . . uses the TIP Report to engage foreign governments in dialogues to advance anti-trafficking reforms and to combat trafficking and to target resources on prevention, protection and prosecution programs.”
Secretary of State John Kerry
On the release of this TIP, Secretary of State John Kerry said, “For years, we have known that this crime affects every country in the world, including ours. We’re not exempt. More than 20 million people, a conservative estimate, are victims of human trafficking. And the [U.S.] is the first to acknowledge that no government anywhere yet is doing enough. We’re trying. Some aren’t trying enough. Others are trying hard. And we all need to try harder and do more.”
Kerry also rejected criticism that the U.S.’ preparing and publishing such a report was an unjustified action. He said, “This is not an act of arrogance. We hold ourselves to the same standard. This is an act of conscience. It is a requirement as a matter of advocacy and as a matter of doing what is right.”
Ambassador Luis CdeBaca
The last point was echoed by Luis CdeBaca, the U.S. Ambassador-at-Large, State Department’s Office to Monitor and Combat Trafficking in Persons. He said the U.S. itself has been included in this report since 2010 as “a matter of fairness to all of the other countries; if we’re going to hold them to these minimum standards, [then] . . . we needed to hold ourselves to them as well.” He added, “no country is doing a perfect job on the fight against human trafficking, and that includes the [U.S.]. We are all in this together.”
Criteria for U.S. Evaluation of Countries’ Trafficking Records
Under its authorizing legislation,[1] the State Department is required to assess the extent to which countries comply with the “minimum standards for the elimination of trafficking” set forth in the legislation. Those standards are the following:
(1)“The government of the country should prohibit severe forms of trafficking in persons and punish acts of such trafficking.”
(2)“For the knowing commission of any act of sex trafficking involving force, fraud, coercion, or in which the victim of sex trafficking is a child incapable of giving meaningful consent, or of trafficking which includes rape or kidnapping or which causes a death, the government of the country should prescribe punishment commensurate with that for grave crimes, such as forcible sexual assault.”
(3)“For the knowing commission of any act of a severe form of trafficking in persons, the government of the country should prescribe punishment that is sufficiently stringent to deter and that adequately reflects the heinous nature of the offense.”
(4)“The government of the country should make serious and sustained efforts to eliminate severe forms of trafficking in persons.”[2]
The statute also requires the State Department, based upon reliable information, to place countries into the following classes or tiers:
“Tier 1. Countries whose governments fully comply with the TVPA’s minimum standards for the elimination of trafficking.”[3]
“Tier 2. Countries whose governments do not fully comply with the TVPA’s minimum standards but are making significant efforts to bring themselves into compliance with those standards.”
“Tier 2 Watch list. Countries whose governments do not fully comply with the TVPA’s minimum standards, but are making significant efforts to bring themselves into compliance with those standards, and for which: a) the absolute number of victims of severe forms of trafficking is very significant or is significantly increasing; b) there is a failure to provide evidence of increasing efforts to combat severe forms of trafficking in persons from the previous year, including increased investigations, prosecution, and convictions of trafficking crimes, increased assistance to victims, and decreasing evidence of complicity in severe forms of trafficking by government officials; or c) the determination that a country is making significant efforts to bring itself into compliance with minimum standards was based on commitments by the country to take additional steps over the next year.”
“Tier 3. Countries whose governments do not fully comply with the TVPA’s minimum standards and are not making significant efforts to do so.”[4] (Emphases in original.)
The U.S. Assessments of Countries Trafficking Records for 2013
The following table summarizes the number of countries in different areas of the world in the different tiers (Report at 58):
Area
Tier 1
Tier 2
Tier 2Watch List
Tier 3
Special Case
Total
Africa
00
26
17
10
01
54
Asia
03
20
09
06
00
38
Europe
21
16
02
00
00
39
Middle East
01
05
04
04
00
14
Pacific
02
03
02
01
00
08
Western Hemisphere
04[Canada, Chili, Nicaragua & U.S.]
19
10
02 [Cuba & Venezuela]
00
35
Total
31
89
44
23
01
188
The Report’s rankings are based upon “information from U.S. embassies, government officials, non-governmental and international organizations, published reports, news articles, academic studies, research trips to every region of the world, and information submitted to [a dedicated Department email address]. . . . The U.S. diplomatic posts and domestic agencies . . . [in turn conduct] thorough research that included meetings with a wide variety of government officials, local and international NGO representatives, officials of international organizations, journalists, academics, and survivors.” (Report at 37.)
Penalties for Tier 3 Countries
Under the authorizing statute, “governments of countries on Tier 3 may be subject to certain restrictions on bilateral assistance, whereby the U.S. government may withhold or withdraw non-humanitarian, non- trade-related foreign assistance. In addition, certain countries on Tier 3 may not receive funding for government employees’ participation in educational and cultural exchange programs . . . . [G]overnments subject to restrictions would also face U.S. opposition to assistance (except for humanitarian, trade-related, and certain development- related assistance) from international financial institutions, such as the International Monetary Fund and the World Bank.”(Report at 44.)
Conclusion
Because of this blogger’s special interest in Cuba, a subsequent post will analyze this Report’s assigning Cuba to Tier 3.
[2] The statute defines “severe forms of trafficking in persons” and “serious and sustained efforts to eliminate severe forms of trafficking in persons.” (Report at 9.)
[3] According to the Report, “While Tier 1 is the highest ranking, it does not mean that a country has no human trafficking problem or that it is doing enough to address the problem. Rather, a Tier 1 ranking indicates that a government has acknowledged the existence of human trafficking, has made efforts to address the problem, and meets the [statute’s] . . . minimum standards. Each year, governments need to demonstrate appreciable progress in combating trafficking to maintain a Tier 1 ranking.” (Report at 40.)
[4] The statute “lists additional factors to determine whether a country should be on Tier 2 (or Tier 2 Watch List) versus Tier 3.” (Report at 43.)
